THE   LEGAIv  ARTICLES 

IN    THE 

JEWISH     ENCYCLOPEDIA, 


Abduction.  (S.  M.)  The  subject  treats  of  C'SJ  2:i3 
as  the  act  of  stealing  a  human  being  h"^  forcible  abduction, 
which  is  Kidnapping:  In  Webster's  Dictionary:  "  This 
crime  (kidnapping)  was  capital  by  the  Jewish  law,"  while 
Abduction  in  law,  according  to  Blackstone,  means:  "taking 
away  a  child,  award,  a  wife,  etc  either  \>-^  fraud, persuasion, 
or  open  violence  "  {ib.).  Moreover,  the  term  is  usually 
understood  by  laymen  (for  whom  the  Encyclopedia  is 
primarily  intended)as  that  of  Seduction,  nriDD  in  Jewish  law 
(Ex.  xxii.  i6.) 

"(i)  To  be  amenable  to  the  law,  etc  "  The  full  des- 
cription of  the  malefactor  should  be  omitted,  but  may  be 
cross  referenced  to  Amenability  or  Liability,  otherwise 
repetitions  will  occur  in  every  subject  of  crime 

**  (c)  Enslavement  must  be  accomplished  by  conscious- 
ness on  the  part  of  the  victim.  Hence,  if  a  victim  be  in  a 
state  of  unconsciousness^  as  in  a  profound  sleep,  at  the  incep- 
tion of  the  crime,  and  remain  in  such  state  throughout  the 
process  of  the  crime,  and  until  its  accomplishment,  the 
crime  is  incomplete  .  .  .  "  (7  lines  below)  "  To  constitute 
enslavement  the  service  imposed  may  be  trivial.  Thus, 
when  the  offender  merely  leans  on  the  victim  or  uses  him 
as  a  screen  against  a  draft  and  that  even  while  the  subject  ts 
asleep,  it  will  be  sufficient  evidence  of  enslavement^  These 
two  statements  plainly  contradict  each  other.  The  writer 
further  says  :  '*  By  selling  him  (the  victim)  the  Talmud 
implies  the  sale  of  the  victim  as  bondmen  are  sold(  Lev. 
XXV.  42).  Therefore  if  the  victim  be  a  pregnant  woman 
and  be  sold  with  a  stipulation  that  only  her  prospective  off- 
spring shall  become  the  property  of  her  purchaser  .  .  . 
this  will  not  constitute  selling  in  the  meaning  of  the  law." 


^•51889 


...  ,., 

.  .'1 


•  •  «    •   •  •  r* 


Apparently  the  writer  used  second  hand  sources,  as  the  text 
in  Talmud  (Sanh.  85  b)  leaves  the  question  open  .,p.^: 
whether  or  not  the  act  of  leaning  against  a  person  while  he 
is  asleep,  or  using  a  body  as  a  screen  against  a  draft,  con- 
stitutes a  service  in  the  meaning  of  the  law  11301  in  iDVniU- 
**  and  he  deal  with  him  as,  a  slave  or  (Hebrew  and)  sell  him' 
(Deut.  xxiv.  7.  Rev.  Ver.)  to  complete  the  crime.  Maimoni- 
d£S  decides  in  the  negative  :  that  leaning  on  a  sleeping  per- 
son, unless  he  is  aware,  at  least  part  of  the  time,  of  the 
service  he  so  renders,  is  not  considered  as  being  enslaved. 
Also  that  the  use  of  a  body  as  a  screen  against  a  draft  is  no 
service,  hence  in  the  case  of  a  pregnant  woman  the  crime  is 
not  accomplished.  (See  Rashi.  ib.)  Thus  it  will  be  seen 
that  the  first  statement  beginning  "  (c)  enslavement,  etc," 
is  correct,  but  the  second  statement  "  when  an  offender 
merely  leans  on  the  victim  or  uses  him  as  a  screen  against 
a  draft  and  that  even  while  the  subject  is  asleep,  it  will  be 
sufficient  evidence  of  enslavement,"  is  entirely  wrong,  as  he 
combines  the  two  separate  questions,  and  decides  contrary 
to  the  law.  This  will  recall  a  recent  suit  against  Mr. 
Russell  Sage  by  Mr.  Laidlaw  who  was  injured  by  a  bomb 
in  the  former's  office,  the  latter  claiming  to  have  been  used 
as  a  screen  to  protect  the  former.  The  judge's  dismissal  of 
the  case  coincides  with  the  ruling  of  Maimonides  :  that  a 
^*  body  screen  "  is  no  service  of  any  account  or  value. 

Abetment  (S.  M.):  The  treatment  here  is  similar  to 
that  of  Accessories  (L.  N.  D.).  Both  include  the  seducer 
(inciter)  who  is  neither  one  nor  the  other.  The  writer  of 
Abetment  is  right  when  he  says:  ♦*  idolatry  among  the 
Jews  was  an  offense  against  the  state,  and  an  attempt  to 
overthrow  the  state;  it  was  high  treason  against  the  Divine 
King."  But  if  so,  the  inciter  is  a  principal  not  an  acces- 
sory, because  "  in  high  treason,  there  are  no  accessories 
but  all  are  principals  on  account  of  the  heinousness  of  the 
crime"  (Blackstone's  Comm.  Bk.  iv,  ch.  3,  §  2,  also -Cent. 
Diet.)  And  an  Abettor  who  is  absent  when  the  felony  is 
committed  is  merely  an  accessory.  Moreover,  an  accessory 
must  be  concerned  either  before  or  after  the  perpetration 
of  the  offensive  act,  while  in  the  case  of  an  inciter  to 


idolatry,  no  act  is  necessary,  as  the  mere  incitement  consti- 
tutes the  crime.  "  The  n^DD  who  incites,  whether  in  a  plural 
let  us  go)  or  singular  sense,  is  executed  by  stoning.  Even 
though  no  idolatrous  act  was  committed,  either  by  the  ir  citer 
or  by  the  one  whom  he  incites"  [Code  of  Moses  Couci, 
Semag)  Lavin  29]. 

Accessories,  (L.  N.  D.):  The  writer  of  this  article 
gives  the  stereotyped  legal  definition  of  an  accessory 
'either  by  counseling,  advising  or  procuring  the  act  to  be 
done,  in  which  case  he  is  called  an  accessory  before  the 
act"  .  .  .  And  further  says :  "  It  is  therefore  not 
necessary  that  any  one  should  have  been  actually  misled,  as 
the  very  attempt  of  seduction  (incitement)  is  punishable 
with  death."  .  .  .  .If  this  contention  is  correct  how 
.does  it  compare  with  accessory  that  requires  an  act  either 
before  or  after  the  act  ? 

In  both  Abetment  and  Accessories  mention  is  made  of 
rf^B^  Agent,  should  be  referred  to  Agency.  In  regard  to 
the  judicial  maxim  that  "  one  cannot  be  an  agent  in  an 
illegal  act,"  the  writer  forgets  to  point  out  the  exception  in 
case  of  aiding  a  thief  in  the  slaughter  or  sale  of  stolen  rat- 
tle that  makes  him  liable  to  a  fine  imposed  in  the  Bible  (B. 
K.  79  a).  Also  where  the  agent  himself  is  not  legally 
responsible  or  prohibited  to  do  the  act,  the  responsibility 
reverts  to  the  principal,  who  alone  becomes  liable.  Inas- 
much as  in  such  a  case  he  cannot  plead  or  point  out  to  the 
agent  his  duty,  x^'cm  ^D.nil  llD^nn  nni  nn  nm  to  "■  rather 
follow  the  dictation  of  the  Master  (God)  than  that  of  His 
subordinate  (man)." 

In  citing  the  case  of  homicide  in  Abetment  he  fails  to 
explain  the  difference  between  murder  and  manslaugh- 
ter which  the  Talmud  distinguishes  broadly.  Otherwise 
the  citation  is  misunderstood  and  seems  senseless, 

Thecivil  cases  in  Abetment  properly  belongto  Damages 
or  Negligence.  The  subject  matter  which  really  belongs 
to   Accessories  or  Accomplice  is  omitted. 

Acceptance  (L.  N.  D.):  The  main  features  belong  to 
Acquisition  and  the  acceptance  of  a  Get  by  the  wife  which 
he  refers  to  Divorce  should  be  treated  under  Delivery. 


Accident  (L.  N.  D.):  This  term  is  usually  defined  as 
an  unforeseen  happening,  without  assignable  cause;  an  act 
of  God  without  human  agency.  It  fits  the  accidental  kill- 
ing in  which  case  the  slayer  is  exiled  (Deut.  xix.  5),  and 
is  here  omitted,  while  there  is  no  question  as  to  the 
definition  of  Damages  or  Negligence  which  ought  to  be 
the  proper  heading  of  1\'5''TJ  nUK  yaiN  or  four  principal  cases 
of  damages,  etc.,  in  place  of  Accident. 

The  writer  quotes  R.  Judah  who  exonerates  one  who- 
causes  damages  to  goods  by  the  ignition  of  his  Hanuka 
lamp  placed  in  front  of  his  shop,  whereas  if  he  peaces  an 
ordinary  lamp  in  a  similar  position  he  is  held  liable.  The 
writer  remarks  that  •*  this  is  not  good  law."  The  fact  is 
that  R.  Judah  was  a  good  lawyer,  and  knew  how  to  make 
an  exception  in  a  case  of  contributory  negligence,  such  as 
this,  where  it  was  the  plain  duty  of  the  shopkeeper  to  place 
the  Hanuka  lamp  outside  of  his  window  or  door  as  an- 
illumination  to  celebrate  the  Maccabaean  victory.  And  the 
negligence  contributed  by  the  (Jewish)  driver  in  not 
observing  the  Hanuka  lamp  and  looking  out  for  his  goods 
on  the  passing  camel,  makes  the  owner  of  the  lamp  blame- 
less. 

The  legal  status  of  an  Agent  should  be  referred  to 
Agency, 

Accommodation  in  Law  (M.  M.):  In  a  legal-commercial 
sense  the  term  is  applied  to  a  loan  of  money  effected  by 
the  security  of  a  promissory  note  supposed  to  be  due  to  the 
borrower,  but  in  reality  the  maker  of  the  note  owes  him 
nothing.  He  merely  "  accommodates  "  him  as  a  friend  for 
the  purpose  of  facilitating  his  raising  a  loan  by  discounting 
the  note,  which  loan  he  could  not  secure  otherwise.  In 
other  words,  the  note  or  transfer  of  the  title  was  for  no 
value  received.  We  have  a  similar  case  of  D^DQ  nt32'  in  the 
Jewish  law.  This  important  matter  is  omitted.  On  the 
other  hand,  the  writer  attempts  to  give  the  term  an  incor- 
rect definition  and  makes  illogical  applications. 

The  postponement  of  Passover  is  no  more  an  accommo- 
dation than  is  the  postponement  nmj  of  the  fast  day 
3X3  nv^i^n  falling  on  a  Sabbath  day.      The  "accommodated" 


•would  probably  be  more  satisfied  to  be  exempt  from  fasting 
altogether.  Nor  is  it  an  accommodation  in  case  of  danger 
to  life  to  be  allowed  to  eat  prohibited  food.  Neither  the 
relaxation  of  the  law  in  relation  to  Aguna  nor  the  arrange- 
ment of  Ereb  and  Prusbel  can  be  termed  accommodation. 
The  whole  matter  should  be  treated  under  modifications 
or  LAW,  relaxation  of  the. 

Accusatory  and  Quisitorial  Procedure.  (L.  N.  D.): 
Inasmuch  as  we  find  no  such  procedure  in  Jewish  law,  ex- 
cept  by  the  voluntary  accusation  of  the  witnesses  confront- 
ing the  accused  whose  own  testimony  is  of  no  consideral 
tion,  the  whole  matter  should  be  referred  to  cross-exami- 
nation or  examination  of  witnesses. 

Acquittal  in  Talmudic  (?)  Law.  (L.  N.  D.):  The 
-composition  of  the  Jewish  Court  belongs  to  Bet-Din  or 
Court  of  Justice  and  the  ''agreement  of  witnesses" 
bhould  be  under  examination  of  witnesses. 

Admissions  in  Evidence:  The  last  part  of  the  article 
("prepared  by  the  present  writer)  was  excised  by  the  editor, 
leaving  the  matter  of  part-admission  riifpDn  miD  unfinished. 

Adultery  (D.  W.  A.):  He  errs  by  saying  that  the  de- 
tection of  actual  intercourse  required  by  the  Mosaic  law  in 
order  to  establish  the  crime,  was  modified  by  the  Talmudic 
law,  etc.  His  quotation  from  Mishna  (Sotah  i.  2)  estab- 
ishes  only  a  cause  for  separation  and  divorce^  but  does  not, 
constitute  the  crime  of  Adultery  that  carries  capital  pun- 
ishment. 

He  further  says  that  under  the  Talmudic  law  the  severity 
of  the  Mosaic  Code  was  modified  (this  theory  is  several 
times  repeated  in  this  article,  unnecessarily),  that  she  could 
be  not  convicted  unless  she  knew  the  law  relating  to  it 
€tc.  "This  caution  was  given  to  her  because  of  the  gen- 
eral tendency  of  the  rabbinical  law  toward  mercy  (?)". 
The  fact  is  that  the  law  against  Adultery  was  just  as  rigidly 
enforced  and  no  "mercy"  was  shown,  but  forewarning 
(nxnnn^  was  required  in  every  criminal  case,  because  it 
was  held  that  "ignorance  of  the  law"  is  a  valid  excuse. 

The  whole  matter  relating  to  the  unfaithful  wife  "x^CtS^ 
should  be  cross-referenced  to  Sotah. 


He  refers  to  the  Talmud  (Yeb.  24b)  and  says:  "A  womarr 
having  been  suspected  of  Adultery  was  divorced,  and  being: 
remarried  was  again  divorced,  and  then  married  the  man 
who  had  originally  been  suspected  of  having  committed 
Adultery  with  her;  the  marriage  was  declared  lawful,'' 
etc.  This  is  a  flat  refutation  of  the  conclusion  in  the  Tal- 
mud (Jb.)  which  decides  that  there  is  no  difference  whether 
or  not  another  marriage  intervened.  The  rule  is  that  in 
any  event  the  suspected  paramour  is  not  permitted  ni'TiDDi)* 
{ante factum)  to  marry  her  and  if  he  breaks  the  injunction 
13^13  {post  factum)  and  marries  her,  he  is  forced  to  divorce 
her  only  on  the  evidence  of  witnesses,  not  otherwise.  The 
writer,  apparently,  glanced  over  the  discussion  under  con- 
sideration in  the  Gemara  without  taking  the  trouble  to  see: 
the  conclusive  decision  reached  there. 

Agency,  Law  of  (L.  N.  D.):  The  writer  makes  no  dis- 
tinction between  the  term  n^>C  in  the  sense  of  a  messenger 
as  a  mere  "tool"  of  the  sender,  and  an  agent  who  is  an 
authorized  representative  to  act  for  his  principal.  Other- 
wise it  is  impossible  to  harmonize  the  apparently  inconsis- 
tencies in  Talmud  in  relation  to  a  rrhv. 

He  says:  "A  woman  ...  or  a  'Canaanite  bondman'  or 
a  bondwoman  of  an  Israelite  may  be  an  agent  and  bind  the 
principal."  The  fact  is  a  servant  may  be  a  messenger  for 
his  employer  to  perform  certain  acts  he  is  instructed  to  do 
for  him,  but  not  as  an  agent  in  a  broader  sense.  Moreover 
it  means  only  his  own  servant  who  is  under  his  control  and 
considered  "like  his  own  hand."  So  long  as  the  servant  is- 
capable  of  reasoning,  it  is  sufficient  to  validate  his  act  as  a 
<'mes^enger  "  Whereas  from  the  language  of  the  writer  it 
appears  as  including  any  bondman  or  bondwoman,  even- 
those  belonging  to  someone  else.  (See,  Magid  Mishna  on- 
Maimonides,  Sheluhin  ii.  2). 

He  further  says:  "In  no  case  is  a  Gentile  recognized  a& 
an  agent  of  an  Israelite,  either  to  bind  him  or  to  acquire- 
anything  for  his  benefit."  Here  n'^^'V  means  in  the  sense- 
of  a  representative^  as  the  condition  of  being  capable  of 
reasoning  is  insufficient  to  make  him  a  responsible  agent. 
From  the  Writ  "Ye  also  shall  offer  (assign  lonn)   an  heave: 


offering  unto  the  Lord  of  all  your  tithes  (Num.  xviii.  28), 
the  Talmud  deduces  from  the  words  "Ye  also,"  DHK  Ui 
that  the  assignment  of  tithes  can  be  done  by  a  representa- 
tive who  may  use  his  judgment  vy  ny^D  in  appropriating  a 
portion  of  the  crop  as  tithes.  And  also  that  the  represen- 
tative must  be  one  of  the  *•  Children  of  the  Covenant  "  like 
the  principal  Dsmi'K'  fix  nnn  ^22  D^ix  HD  Rab  Ashi  however 
claime  that  this  case  is  an  exception  and  that  in  all  other 
matters  of  law  a  Gentile  can  be  made  a  representative. 
Rabbina  gives  a  Gentile  "acquisition  power,"  n^^Dt,  which 
probably  validates  his  power  of  attorney,  in  accordance 
with  a  later  opinion  of  R.  Tarn  who  gave  power  of  attorney 
to  a  Gentile  (Tur,  chap.  123,  par.  15).  The  decision  in 
the  Gemara  is  against  the  contention  of  both  Rab  Ashi  and 
Rabbina.  Neverthe  ess  a  Jew  is  prohibited  to  make  a 
Gentile  a  "go  between"  in  a  case  of  usury  (B.  M.  71  b). 
Rabbi  Isaac  ben  Shcshet  ('d  '3"i  )  responds:  "Inasmuch  as 
everyone  knows  the  rule  that  'one's  proxy  is  like  himself 
and  few  know  of  the  biblical  interpretation  of  nnn  ^22  Dn«  n» 
etc.,  it  is  not  to  be  applied  to  exempt  an  act  of  limitation  or 
prohibition."- ^(Ribash,  Responsa,  No.  276.) 

Regarding  the  appointment  of  a  sub-agent,  he  says:  "in 
the  Roman  as  well  as  the  English-American  law,  he  (the 
agent)  can  do  so  only  by  special  authorization,  but  both 
the  Talmud  and  the  standard  authorities  are  silent  as  to 
the  conditions  allowing  the  appointment  of  a  sub-agent." 
The  fact  is  that  the  tormula  of  the  delivery  of  a  Ggf  contains 
the  words:  "And  I  herewith  give  you  permission  to  appoint 
an  authority  and  the  latter  to  appoint  another,  till  the  hun- 
dredth (Tur,  Eben  Ezar,,  chap.  i).  §  41)  Shows  the  neces- 
sity of  a  special  authorization.  Moreover,  Alfasi's  opinion 
quoted  there,  that  the  written  order  to  the  proxy  is  not 
needed,  except  for  the  special  purpose  of  giving  him 
authority  to  appoint  a  sub  agent.  (See  also,  J.  Caro,  Beth 
Joseph,  ilf.) 

Agnates  (L.  N.  D)  :  This  subject,  except  the  last  part 
which  belongs  to  witnesses  compitent  or  fit  to  testify,  should 
be  cross-referred  to  Inheritance,  Law  of,  a  general  term 
more  familiar  in  law  and  better  understood  by  laymen. 


8 

Referring  to  a  Gentile,  he  says:  "The  reputed  kinship 
between  one  heathen  and  another  is  deemed  sufficient  to 
determine  the  right  of  succession;'*  which  is  inconsistent 
with  what  he  says  further  that  *'the  marriage  of  a  Gentile 
is  not  recognized  as  a  basis  of  heirship,  and  the  estate  of  a 
proselyte  in  such  a  case  has  no  owner."  The  real  answer 
is  that  a  proselyte  is  like  a  new  born  babe,  I^IJB^  |Cp3 
hence  his  former  alliances  are  all  severed. 

Agrarian  Laws  (M.  L  M.):  This  subject  is  well  treated 
but  mention  should  be  made  that  according  to  Rabba,  the 
law,  that  "  no  transfer  shall  be  made  from  one  tribe  to  an- 
other," (Num.  xxxvi.  9),  in  cases  ot  daughters  being  the 
sole  heirs,  was  operative  only  in  the  time  of  the  desert 
^tiabitation,  "laiDH  "in  and  became  inoperative  after  the 
tribes  were  settled  in  Palestine.  (B.  B.  120  a). 

Aguna  (D  W.  A.):  This  topic,  which  occupies  so  much 
space  in  Rabbinic  law,  should  in  proportion  to  other  matter 
take  up  more  than  a  half  column  in  the  Encyclopedia.  Ten 
times  as  much  room  would  hardly  be  sufficient  to  ade- 
quately treat  the  subject.  Especially  in  reference  to  pNt}^  D^D 
»11D  Dni»  '^endless  water." 

Alibi  (L.  N.  D.):  The  writer  fails  to  distinguish  between 
a  refutation  of  an  alibi  in  case  of  D'DDU  2nv  and  that  of 
contradictory  witnesses,  nt^^nan  nj;.  Also  the  fact  that  the 
Talmud  considered  this  Mosaic  law  as  an  exception  and 
would  not  use  it  as  a  precedent  or  analogy  in  other  cases- 
Because  they  could  not  reason  "why  should  we  place  con- 
fidence in  the  second  pair  of  witnesses  and  disbelieve  the 
first  pair— two  against  two?"  ^Jnx  I^CD  ^jn5<  n^DDDT  nnn  '•KO, 

Alienation  and  Acquisition  (L.  N.  D.):  The  title 
should  be  reversed  as  the  writer  admits  that  acquisition 
is  the  V^?  of  the  Jewish  law  and  is  better  understood  by  lay- 
men. 

He  says:  "Neither  the  Talmud  nor  the  later  standards 
undertake  to  define  what  is  meant  by  a  sale  of  land  on  ac- 
count of  its  badne-s."  nnyi  ^JQD  msj^ -idID  means  non- 
productive land  that  the  owner  desires  to  get  rid  of,  prob- 
ably to  avoid  taxation,  which  he  sells  for  a  nominal  sum^— a 
mere  gift.     In  such  case  the  deed  alone   without  a  consid- 


eration  is  sufficient  to  make  the  transfer  valid.  (See  Kes- 
seph  Mishna  to  Maimonides,  Mekirah  i,  7). 

"The  most  effective  manner  of  acquiring  land  is  the  so- 
called  purchase  by  kerchief.''  This  assertion  is  incorrect, 
as  the  proper  way  is  stated  in  the  Mishna  to  be;  "  Money, 
deed  or  possession  "  And  the  best  way  of  acquiring  chat- 
tels IS  by  delivery  into  the  possession  of  the  purchaser  or 
grantee.  In  case  these  conditions  could  not  be  complied 
with,  the  Talmud  allowed  the  title  to  pass  on  the  nominal 
consideration  of  a  kerchief,  based  on  the  principle  of  barter 
or  exchange.  But  while  in  modern  law  the  nominal  con- 
sideration is  a  dollar,  Jewish  law  would  not  legalize  money  as 
a  consideration,  owing  to  its  fluctuation  in  value  at  the 
time  of  the  Talmud.  The  underlying  principle  is  that  the 
full  consent  of  the  vendor  is  necessary  for  the  alienation  of 
his  property  in  order  to  pass  the  title,  hence  if  he  depended 
on  the  face  value  of  the  coin,  he  did  not  give  his  hearty 
consent  when  the  transaction  took  place,  until  he  could  as- 
certain of  its  current  value,  which  was  liable  to  depreciate 
and  make  him  repent  of  the  sale.  At  any  rate  the  title  did 
not  pass  at  the  time  of  the  sale,  which  is  essential  in  ac- 
quisition; whereas  a  consideration  that  has  no  face  value 
he  accepts  at  the  time  of  the  exchange  for  what  it  is  worth 
and  voluntarily  consents  to  the  transfer  of  the  title.  The 
same  reason  is  applicable  to  a  consideration  of  fruit  or  eat- 
ables, being  liable  to  decay  and  depreciation;  they  have  no 
fixed  value,  and  the  purchaser  is  not  yet  ready  to  relinquish 
his  right,  ^JpOl  "iDi  nh.  However,  where  the  owner  expresses 
his  hearty  consent  (in  a  deed),  the  kerchief  considera- 
tion may  be  waived.     (Maim.  Mekirah  v.  13). 

**Sales  limited  by  time"  should  come  under  Lease  or 
Landlord  and  Tenant. 

Regarding  Delivery  he  says:  *'The  early  sages  feared 
that  where  the  price  was  paid  before  delivery,  room  would 
be  left  for  fraud,  as  the  seller  after  receiving  his  money 
might  claim  that  the  buyer's  goods  had  been  burned  or 
otherwise  destroyed  in  his  (the  seller's)  house  or  ware- 
house." The  explanation  in  Talmud  is  plainly  stated: 
There  is  no  fear  of  fraud,  but  of  an  accident  of  fire  that 


10 

might  break  out  at  the  seller's  place,  who  will  be  reluctant 
to  render  heroic  assistance  as  he  would  for  his  own 
goods.  Therefore  he  is  held  responsible  and  compelled  to 
practice  the  golden  rule.  (B.  M.  47  b.)  But  the  whole 
matter  should  be  treated  under  Delivery. 

'The  Talmudic  passage  as  to  the  requisites  of  changing 
title  in  a  ship  (B.  B.  76a  et.  seq.'i  is  rather  confused,  etc. 
It  seems  clear  that  when  a  ship  is  in  deep  juater  in  the  open 
sea,  delivery  is  sufficient;  but  it  is  not  clear  what  degree  of 
removal  is  required  when  it  is  in  a  narrow,  half-private 
inlet,  etc." 

There  is  no  confusion  except  two  variations  in  the  text,, 
of  which  ours  is  correct  (see  Rashbaum)  The  sub- 
stance is  as  follows  :  The  best  kind  of  delivery  is 
required  in  passing  title  of  chattels.  Hence  in  bulky  and 
heavy  chattels,  where  the  transfer  by  "lifting  up"  nnn^n  is 
impossible,  ^he  next  best  thing  is  "pulling,"  it  \\y^'0^  into, 
the  possession  of  the  purchaser.  The  ship  in  question 
happened  to  be  launched  on  a  pond  of  a  public  plaza, 
where  mere  ''moving"  is  useless  unless  it  can  be  pulled  in- 
to his  own  possession  or  into  an  inlet  of  an  open  lot  fc<DD''D, 
which  has  no  claimant,  and  if  it  has,  he  must  obtain  from 
the  owner  legal  possession  of  the  space  occupied  by  the 
ship.  But  in  case  pulling  into  the  purchaser's  possession 
is  impossible,  the  formal  delivery  m^DD  is  sufficient  so 
long  as  it  is  removed  from  the  vendor's  possession. 

In  reference  to  the  case  in  Jerusalem  (Kid  26,  b)  he 
says:  "A  written  deed  for  the  lot  and  the  goods  would 
probably  have  been  just  as  effective."  No,  it  would  be  null 
and  void  in  this  case  where  the  grantee  of  the  chattels  was 
absent  and  could  not  give  the  consideration  of  a  kerchief 
The  only  way  his  friend  could  transfer  to  him  the  title  of 
the  scattered  chattels  was  to  gather  them  or  their  equiva- 
lent in  money,  on  a  parcel  of  ground  for  which  he  gave  him 
a  deed,  being  sufficient  in  a  grant  of  real  property  as  a 
gift  without  a  consideration,  and  at  the  same  time  the  chat- 
tels placed  on  that  lot  were  also  incidentally  transferred. 

He  translates  the  word  11»''DX  in  Mishna  (B.  M.vi,  i)  as 
bath-checks,  aseymon  is  Greek  which  means  "  unstamped 


11 

coin."  (See  Lipschitz,  Tipheret  Israel  ib).  The  Gemara 
merely  explains  that  it  passed  as  a  fee  for  a  bath. 

In  reference  to  the  exchange  of  coins,  he  says:  "The 
Gemara  (/^,  44  a)  in  this  section  refers  to  an  older  opinion 
—evidently  inconsistent  (?)  with  the  Mosaic  law,  etc." 
This  statement  is  incorrect  and  misleading;  the  fact  is  thisr 
Rabbi  (Juda  I,  a  Tannaite)  taught  his  son  Simon,  the 
Mishna,  that  "Gold  buys  silver,  but  not  vice  versa,"  while 
in  his  earlier  days  he  taught  him  just  the  reverse.  The- 
change  of  opinion  is  explained  that  in  his  youth  he 
reasoned  that  because  gold  being  rare,  it  is  the  standard 
and  silver  being  less  valuable  is  but  a  conlmodity,  but  when 
he  became  older  he  reached  the  conclusion  differently,  that 
silver  being  the  best  currency,  is  the  standard,  and  main- 
tains a  fixed  price  which  is  essential  if  used  as  a  considera- 
tion (see  above).  This  proves  that  "there  is  nothing  new 
under  the  sun,"  that  the  disoute  between  the  Republicans 
and  Bryan  Democrats  in  regard  to  the  gold  standard  has 
been  fully  discussed  2000  years  ago.  However  the  matter 
should  be  treated  under  Consideration. 

The  privileges  of  the  Sanctuary  (or  rather  Property, 
Public  or  Sacred,  li^lpn)  and  of  Orphans  should  be  re- 
ferred to  their  proper  places.  The  question  of  priority 
should  be  treated  under  Deeds,  Records  of.  Conditional 
sales  should  be  referred  to  CoNDiTions  or  Stipulations. 
The  article  is  entirely  too  long  as  it  treats  of  different  sub- 
and  should  be  sub-divided. 

He  says:  "The  law  of  conditional  sales  or  gifts  is  rather 
obscurely  stated  in  the  Mishna  (B.  M.  vii.,  11.)  and  the 
Gemara  upon  it  (94  a)  is  too  scanty  to  elucidate  it,  etc."  I 
will  give  here  the  translation  of  the  Mishna  to  show  that 
the  subject  is  very  clear  indeed:  "(i)  Whoever  stipulates  a 
condition  that  is  contrary  to  the  law  of  the  Torah — such  a 
condition  is  void.  (2)  If  the  specific  performance  is  de- 
manded prior  to  a  stipulation — the  condition  is  void.  (3) 
A  condition  stipulated  (even)  beforehand  but  is  finally  im- 
possible to  be  executed — such  a  condition  is  void."  The 
first  paragraph  needs  no  explanation,  as  no  contract  can 
contain  a  clause  which  is  contrary  to  the  Constitution.  The 


12 

second  paragraph  annuls  a  condition  made  subsequent  to 
the  contract  for  a  specific  performance.  As  the  Mishna 
holds  that  the  contract  became  in  force  immediately  and 
the  annexed  stipulation  cannot  alter  it,  consequently  it  is 
void  and  of  no  value.  For  this  reason  the  condition  has  to 
be  repeated.  The  Talmud  shows  that  the  contract 
made  with  Gad  Reuben  and  half  of  Menasseh  contained  a 
^ 'double  condition"  P1Q3  ^N*Jn;  ''If  they  «//// /«jj  the  Jordan 
with  you  ...  ye  shall  give  them  the  land  of  Gilead.  But 
//  they  will  not  pass  .  .  .  they  shall  (but)  have  possession 
among  you  in  the  land  of  Canaan  (Num.  xxxiii.,  29-30). 
The  third  paragraph  excludes  a  freak  stipulation  such  as  a 
bill  of  divorce  with  a  proviso  that  it  shall  take  effect  only 
when  the  divorcee  shall  ascend  in  a  ballgon  to  Heaven,  or 
swim  across  the  ocean.  Such  a  stipulation  is  considered  an 
exaggeration,  as  it  cannot  be  enforced,  consequently  is  ex- 
cluded and  the  document  is  otherwise  valid. 

Alimony  (D.  W.  A):  The  whole  article  except  the  lat- 
ter part  and  the  Document  (J.  D.  E.),  treats  of  Ketuba  and 
should  be  under  that  heading,  while  the  legal  matter  bear- 
ing on  the  subject  is  omitted. 

Important  subjects  omitted  are:  Acknowledgment; 
Action,  Legal,  and  of  Bet-din  *X1  r\m^\  Advertise 
MENTSor  Announcements,  nnan;  Affidavits,  nny  n^^3i; 
Age  of  Consent;  Agreement;  Allotment,  ;  Alter- 
ation, ;  Ambiguous  Language  in  law;  An- 
nulment OF  Betrothment  or  Marriage,  X^^^  nypQn 
IIK'^D  ;  Analogy,  1"p  C^pM.  This  is  referred  to  Talmud. 
But  it  requires  separate  treatment,  otherwise  the  article  on 
Talmud  will  be  too  long;  Antedate  in  Contracts,  ntSB^ 
DIplO. 

From  the  detailed  criticism  above,  it  will  appear  that:  (i) 
Many  articles  are  not  under  their  proper  headings  (2) 
One  subject  is  treated  under  several  headings.  (3)  Several 
subjects  are  treated  under  one  heading  and  should  be  sub- 
divided. (4)  A  general  description  repeated  in  individual 
subjects.  (5)  Repetitions  of  theories  in  the  same  article 
(6)  Contradictions  even  in  the  same  article.  (7)  Misstate- 
ments of  facts  and  of  conclusions.     (8)  Comments  that  a 


13 

certain  ruling  inTaimud  is  not  good  law  without  consult- 
ing the  usual  commentaries  which  give  good  legal  reasons 
for  it.  {9)  Remarks  about  the  obscurity  in  the  Mishna  and 
of  the  Gemara's  commenting  as  "too  scanty  to  elucidate 
it,"  whereas  the  subject  is  perfectly  clear  and  intelligible 
to  the  average  Talmudic  scholar.  (10)  Failure  to  bring 
out  all  the  points  of  the  law,  and  state  the  exceptions  and 
modifications  of  the  latest  authorities.  (11)  Comparatively 
allowing  little  room  for  some  important  subjects,  or  omit- 
ting them  entirely. 


Commtinicatioii. 


A  REPLY  TO  MR.    EISENSTEIN. 
To  The  American  Hebrew: 

More  than  a  month  ago  Dr.  Funk  of  the  Funk  &  Wag- 
nails  Company  forwarded  to  me  a  bulky  manuscript  from 
the  pen  of  Mr.  Eisenstein,  reviewing  the  articles  on  Law 
which  appear  in  Volume  L  of  the  Jewish  Encyclopedia, 
with  the  request  that  I  would  make  the  best  possible  de- 
fence. Mr.  Eisenstein  began  by  premising  that  the  treat- 
ment Of  Midrash  in  the  Jewish  Encyclopedia  was  fine,  but 
that  of  Halacha  rather  poor  I  answered  this  in  a  letter  to 
Dr.  Funk,  by  showing  that  it  is  easy  enough  to  repeat  a 
good  story,  but  pretty  difficult  to  abridge  a  mass  of  discus- 
sions on  law  and  to  bring  out  from  the  conflicting  opinions 
the  true  result.  I  might  have  added  another  excuse  for 
any  shortcoming  in  that  line.  Where  the  Halacha  refers 
not  to  ritual  or  moral  duties,  but  to  jurisprudence,  to  Mine 
and  Thine,  it  must  be  hand'ed  by  a  modern  lawyer  in  order 
to  make  the  treatment  interesting,  or  even  intelligible  to 
modern  readers.  Mr  Amram  and  I  were  chosen  by  the 
-editors,  the  former  for  the  law  of  marriage  and  divorce 
mys-elf  for  other  branches.  Both  of  us  have  given  our 
lives  to  the  study  and  practice  of  American  law;  in  that  we 
are  professionals;  in  Dine  Mamonoih  we  are  amateurs. 
When  we  make  mistakes  in  finding  or  interpreting  the 
sources  in  Talmud  or  Posekim,  the  editor  of  the  depart- 
ment, the  learned  Dr.  Marcus  Jastrow,  sets  us  right;  but 
neither  of  us  has  the  subject  at  his  fingers'  ends.  There 
may  be  some  English  or  American  lawyer,  writing  good 
English,  who  is  as  well  posted  in  the  Hashen  Mishpot  and 
Eben  Haezer,  in  the  three  Babas  and  in  Kethuboth,  as  in 
Land  Titles,  Equity,  Negotiable  Paper,  etc. ;  if  there  is  one 
he  ought  to  have  been  chosen  for  the  work. 

Mr.  Eisenstein  pointed  out  that  several  of  the  names 
;given  to  my  articles  and  to  those  of  Mr.  Amram  were  ill 
chosen.  In  my  letter  to  Dr.  Funk  I  frankly  admitted  that  this 


15 

-was  so,  and  I  do  so  now.  Thus  negligence  was  the  proper 
heading  for  accident;  acquittal  should  have  come  under 
CRIMINAL  procedure;  the  matter  of  agnates  belonged 
under  Law  of  descent.  Some  of  the  editors,  wishing  to 
have  a  few  more  juridical  articles  in  the  first  volume,  delib- 
erately chose  a  few  rather  improper  headings,  knowing  that 
a  cross  reference  in  the  right  place  would  straighten  it  out 
to  the  searcher  for  information.  Meanwhile  I  have  pro- 
tested against  pursuing  any  such  course  in  the  future. 

Something  remains  to  be  said  in  answer  to  criticisms  on 
the  matter  in  my  own  articles. 

I  am  blamed  for  treating  of  the  n^DD  (inciter  to  idolatry) 
under  the  head  of  accessories,  as  he  is  not  an  accessory  in 
the  Common  Law  sense  of  that  vvord.  But  I  point  out  the 
distinction  myself.  It  comes  simply  to  this:  A  reader 
wants  to  know  the  Jewish  law  as  to  accessories  in  crime. 
He  looks  up  my  article,  and  finds  that  in  the  Common  Law 
sense  of  the  word,  accessories  are  unknown;  in  the  only 
case  in  which  incitement  to  crime  is  punished,  the  incite- 
ment itself  is  treated  as  a  substantive  offence.  He  says: 
^*The  writer  forgets  to  point  out  the  exception  in  ca^e  of 
aiding  a  thief  in  the  slaughter  or  sale  of  stolen  cattle," 
quoting  Baba  Kamma,  79  a,  I  admit  that  I  overlooked 
this  passage;  but  had  I  given  it  with  any  fullness,  my 
editor  would  probably  have  stricken  it  out  as  unnec- 
essary detail,  overrunning  the  allotted  space. 

Where  I,  from  B.  K.  ch.  6,  last  section,  quote  R, 
Judah  "who  exonerates  one  who  causes  damage  to  goods 
by  ignition  from  his  Hanuka  lamp  placed  in  front  of  his 
shop,"  I  am  blamed  for  the  remark  that  ''this  is  not 
good  law,"  and  I  am  told  that  "R.  Judah  was  a  good 
lawyer  and  knew,  etc."  But  I  think  I  was  right,  for  in 
the  notes  of  Obadiah  of  Bartenoro  to  the  Mishna  I  found: 
"the  Halacha  is  not  according  to  R.  Judah";  and  this 
annotator  is  generally  correct  in  such  a  remark,  as  he 
draws  it  from  the  Gemara  or   Posekim. 

The  article  on  accusatory  or  inquisitorial  procedure 
is  objected  to  by  Mr.  Eisenstein,  because  the  latter  pro- 
cedure did  not  exist.     But  the  fact  that  it  did  not  exist 


16 

is  worth  telling,  as  one  of  the  glories  of  the  Jewish  race^ 
and  as  an  illustration  of  the  words  of  Deuteronomy  about 
our  "good  and  rational  statutes." 

In  the  article  on  agency,  I  show  clearly  that  the  He- 
brew word  r\'^^\y  is  used  in  a  double  sense,  a  mere  messen- 
ger and  an  agent  having  a  discretion.  If  in  the  same 
article  I  have  omitted  to  say  that  only  the  principal's  own 
bondman,  but  not  the  slave  of  another,  can  be  entrusted 
with  an  agency,  I  have  been  no  less  painstaking  or  full  in 
detail  than  Maimonides  i^Sheluhin^  ch.  ii.,  2),  from  whom  I 
mainly  drew  the  matter  for  that  article;  it  is  a  glossator  on 
Maimonides,  who  first  draws  the  distinction. 

In  denying  the  rightfulness  of  the  appointment  of  a 
Gentile  as  agent,  and  in  thus  stating  a  harsh  rule,  ill- 
founded  in  reason  or  scriptural  authority,  I  followed  the 
conclusions  of  the  Gemara,  of  Maimonides  and  of  the 
Hoshen  Mishpat,  not  my  own  inclinations.  I  had  neither 
the  time  to  hunt  up  the  conflicting  views  of  single  Amoraim 
or  of  later  casuists  to  the  contrary,  nor  the  space  at  my 
disposal  in  which  to  set  down  these  dissenting  opinions. 

The  review  is  to  be  continued  and  it  will  take  in  my 
articles  on  alibi  and  on  alienation.  I  know  the  criticisms 
which  are  likely  to  appear  on  some  of  my  positions,  and  on 
some  of  my  omissions  under  those  heads,  but  "a  horse 
should  not  kick  before  it  is  spurred." 

Lewis  N.  Dembitz. 
August  i8th. 


17 

THE  LEGAL  ARTICLES  IN  THE  JEWISH 
ENCYCLOPEDIA. 

To  The  American  Hebrew: 

I  thank  Mr.  Dembitz  for  his  courteous  reply  to  my  re- 
V  iew,  and  would  be  glad  if  some  other  writers  did  the  same 
A  discussion,  I  believe,  would  lead  to  the  best  results,  ''NJ^D 
NnnvOK'  n^-^ynDn  yy^\.  Of  course  one  cannot  expect  to  find 
perfection  in  a  pioneer  work  of  this  magnitude — although 
judging  it  as  a  whole,  a  great  deal  has  been  accomplished. 
But  if  every  scholar  in  his  particular  line  of  work  would 
point  out  the  errors  he  may  find  in  the  Encyclopedia,  im- 
provements in  the  following  volumes  may  be  expected,  and 
later,  perhaps,  we  may  have  a  revised  edition.  That  is 
what  prompted  me  to  do  my  share  in  reviewing  the  legal 
articles,  especially  those  appearing  to  have  been  compiled 
in  haste  and  loosely  treated  by  the  editor  in  charge,  in  con- 
trast with  the  Haggadic  portion,  which  is  fairly  treated  and 
includes  some  valuable  articles  by  Dr.  K.  Kohler  and  Dr. 
L.  Ginsberg. 

While  agreeing  with  Mr.  Dembitz  that  the  Halacha  is 
the  most  difficult  to  handle,  I  doubt  the  inability  to  find 
some  competent  jurists  familiar  with  both  the  Jewish  and 
the  English  law.  If  one  person  be  not  gifted  with  both 
talents,  why  not  employ  two  individuals  for  this  purpose, 
one  learned  in  Jewish  and  the  other  in  English  law.  Let 
us  profit  by  the  Talmudic  parable  in  relation  to  the  soul 
and  the  body,  each  disclaiming  responsibility  at  the  Judg- 
ment Day  for  the  sins  of  the  man,  inasmuch  as  individually 
neither  is  capable  of  doing  wrong.  Similarly  the  blind 
man  and  the  cripple  who,  being  appointed  guardians  of  an 
orchard,  denied  having  helped  themselves  to  the  best  fruits 
by  proving  their  incapacity  severally  to  do  the  act.  The  crip- 
ple was  placed  on  the  shoulders  of  the  blind,  and  punishment 
meted  out  accordingly.  So  with  the  legal  articles  let  us 
combine  the  two  lawyers  if  we  cannot  find  the  combined 
knowledge  in  one,  and  hold  both  responsible  for  the  result. 
After  all,  I  think  that  a  thorough  knowledge  of  the  Jewish 
law  and  some  acquaintance  with  modern  law  and  legal  ter- 


i8 

minology  are  quite  sufficient  for  the  work,  considering  that 
the  articles  must  pass  a  revising  editor. 

Now  to  answer  Mr.  Dembitz:  His  defense  for  treating 
the  inciter  of  idolatry  under  Accessories,  is  that  it  was 
done  in  order  to  facilitate  "the  reader  who  wants  to  know 
the  Jewish  law  as  to  accessories  in  crime.  He  looks  up 
the  article  and  finds  that  in  the  common-law  sense  of  the 
word  accessories  are  unknown,"  etc.  But  I  claim  that 
they  are  known  in  Jewish  law.  Accessory  and  abettor  are 
termed  HTny  nniy  n^  r^DD,  "upholding  the  hands 
of  transgressors."  In  homicide,  one  who  causes  a  person 
to  be  devoured  by  wild  beasts,  or  killed  by  his  hireling, 
cannot  be  prosecuted  by  the  authoritative  law,  D1K  ^^n. 
but  is  responsible  to  the  moral  law,  D"'»6J'  ^Jn,  /.  <?.,  God 
will  require  his  punishment.  This  is  deduced  from  Gen- 
ix.,  5,  "The  blood  of  your  lives  will  I  require  at  the 
hands  of  every  beast  (through  human  agency)  ...  at 
the  hands  of  every  man's  (hired)  brother  will  /  require 
the  life  of  man."  (Maim.,  Rozeah,  ii  ,  2-3.)  But  as  capi- 
tal  punishment  was  abolished  before  the  Talmud  was  com- 
piled, the  laws  against  murder  became  obsolete,  discussion 
from  an  academic  view-point  was  limited  and  the  various 
degrees  of  murder  not  fully  expressed  or  treated.  Hence 
the  Talmud  is  minus  the  details  regarding  the  punishment 
of  accessories,  etc.,  and  all  codifiers,  except  Maimonides 
and  de  Couci,  omitted  entirely  the  matter  of  wilful  mur- 
der. Thus  there  is  no  basis  in  law  for  Maimonides' 
assertion  that  "all  who  were  morally  guilty  of  murder  were 
capitally  punished  by  order  of  the  Jewish  king  in  accord- 
ance with  the  laws  of  the  government,  or  by  the  temporary 
(exemplary)  edict,  nVK^  nxiin,  by  the  Jewish  court,  who 
ordinarily  had  discretional  power  to  administer  corporal 
punishment  and  impiisonment "  (Maim.  Rozeah,  ii  ,  4-5). 
The  latter  part  is  derived  from  the  Talmud,  on  the  hear- 
say evidence  of  R.  Eliezar  ben  Jacob,  that  during  the 
Temple  period  the  supreme  court  administered  stripes  and 
punishment  not  in  strict  accordance  with  the  Torah— nor 
against  it,  but  as  a  fence,  a^''D.  to  protect  us  provisions  and 
laws  {.San.  46a).     The   writer   of   Abetment  (S.  M.)  says: 


19 

'The  abettor  in  murder  is  imprisoned  {Sank  8ib;  Maim, 
Rozeah,  ii.,  5;  iv.  8)."  This  is  incorrect  for  the  imprison- 
ment mentioned  in  Sank.  (ibid.)y  does  occur  not  in  a  case  of 
abetment,  and  Maimonides,  as  quoted  above,  gives  discre- 
tional power  to  the  judges  to  punish  the  abettor  by  either 
stripes,  imprisonment  or  even  death. 

Morally,  however.  Abetment  or  Accessory  in  murder  was 
considered  a  great  crime.  R.  Moses  de  Couci  writes:  "Go 
and  learn  a  lesson  from  Ahab,  the  infamous  idol  worship- 
per, whom  the  Scriptures  accuse  thus:  'There  was  none 
like  unto  Ahab  who  did  sell  himself  to  work  unkindness  in 
the  sight  of  the  Lord' (I.  Kings,  xxi  ,  25),  and  yet  when 
his  good  and  bad  deeds  were  assorted  and  weighed  before 
God,  who  controls  the  spirit  of  all  flesh,  there  was  none 
against  Ahab  to  overbalance  the  scale  and  seal  the  doom  of 
his  destruction,  save  the  spirit  of  the  blood  of  Naboth,  as 
is  written:  'And  there  came  forth  a  spirit  and  stood  be- 
fore the  Lord  and  said,  I  will  persuade  him' — that  was  the 
spirit  of  Naboth  (Sabb.  149b) — '  And  the  Lord  said  unto 
him  .  .  .  thou  shalt  persuade  him  ...  go  forth  and  do 
so.'  (I.  Kings,  xxii.,  21-22.)  Although  the  wretch  Ahab 
was  but  an  accessory  and  did  not  kill  Naboth  with  his  own 
hand.  How  much  more  so  if  one  personally  kills  his  fel- 
lowman!"  (Semag,  Laivin,  No.  163). 

Associate  witnesses  who  aid  the  original,  pair  of  false 
witnesses  in  accusing  one  of  a  capital  crime,  are  equally 
guilty  and  convicted  by  a  subsequent  pair  of  witnesses  who 
confront  them  with  an  alibi,  Dn^M  liDV,  /.  e ,  that  the 
said  witnesses  were  with  them  in  a  place  removed  from  the 
scene  of  the  crime — in  such  case  retaliation  was  of  the 
same  kind  (Deut.  xix.,  19),  and  capital  punishment  was 
visited  on  the  perjured  witnesses,  irrespective  of  their  num- 
bers; and  if  the  accusation  carried  corporal  punishment, 
each  of  the  false  witnesses  received  instead  the  prescribed 
number  of  stripes  (Deut-  xxv  ,  3.).  Except  when  the  ver- 
dict involved  a  money  payment,  the  amount  was  divided  in 
equal  shares,  each  paying  his  ratio  as  a  fine  to  the  accused 
(Makot  i ,  3-5-7  ).  This  upset--,  the  statement  of  the  writer 
of  Abetment,  who  says:   "As  in  homicide,  so  in  all  capital 


30 

crimes,  Talmudic  jurispiudence  does  not  convict  more  than 
one  person  of  a  crime  which  can  be  accomplished  by  a 
single  person  (p.  9-54)  The  fact  is  the  Talmudic  law 
convicts  more  than  a  hundred  false  witnesses  who  accuse 
but  one  person,  on  the  ground  that  every  one  is  considered 
a  principal,  or  perhaps  this  is  an  exception  to  all  other  ac- 
cessories in  crime. 

In  regard  of  one  assisting  another  to  desecrate  the  Sab- 
bath in  a  task  of  labor  which  the  principal  could  do  single- 
handed,  the  abettor  is  not  liable.  Amemar,  as  an  example, 
allowed  a  Gentile  to  paint  his  eyes  on  Sabbath,  though  he 
helped  in  the  opening  and  closing  of  the  eyelids,  because 
he  ruled  that  assistance  is  of  no  consequence,  JJ'DO  )2  i^N  V^'^DD 
{jBgzakf  22a). 

indirect  aid  rendered  to  a  principal  before  the  act,  as  in 
a  case  of  selling  farm  implements  to  one  suspected  as  a 
violator  of  the  Sabbatic  year  rest,  is  prohibited,  provided 
there  is  a  reasonable  presumption  that  the  purchaser  would 
use  them  that  year  {Shebiity  v.,  6-9).  This,  however,  is  not 
the  law,  but  a  regulation,  as  the  Yerushalmi  explains,  for 
the  protection  of  society,  Di»iyn   jlpT)  '•JSD 

We  are  cautioned  not  to  put  a  stumbling  block  before 
the  blind  (Lev.  xix.,  14),  and  to  fix  a  balustrade  on  the 
house-roof,  "that  thou  bring  not  blood  upon  thine  house." 
(Deut.  xxii ,  J.)  R.  Nathan  says:  *  One  must  not  permit  a 
vicious  dog  or  a  tottering  ladder  in  his  premises,"  on  the 
same  principle;  and  ought  to  be  ostracised  or  excommuni- 
cated unless  he  removes  anything  that  might  cause  danger 
to  life  or  property  in  his  premises.   (Ket.  41c). 

It  is  prohibited  to  sell  to  a  Gentile  incense,  etc.,  which  is 
supposed  to  be  used  in  idol  worship  {A,  Z.  13b).  R.  Iz- 
haki,  however,  permits  minor  assistance  to  a  Gentile,  who 
is   not   bound    by   the   Jewish   law    (Rashi's    Comm  ,    A* 

Z'  55a.) 

In  civil  cases,  one  who  by  a  minor  part  completes  the 
major  part  of  a  principal  actor,  as  in  case  of  negligence, 
"If  a  man  dig  a  pit  and  not  cover  it  and  an  ox  or  an  ass 
fall  therein  (Ex.  xxi.,  33),  the  Talmud  calculates  that 
the  fall  in  a  pit  of  ten  spans  deep  is  of  sufficient  force  to 


21 

kill;  hence  the  digger  of  the  pit  in  not  taking  the  necessary 
precaution  to  protect  it,  is  responsible  for  the  death  of  the 
animal.  But  if  one  make  an  excavation  of  nine  spans  and 
another  person  completes  the  tenth,  the  latter  only  is  held 
liable  for  the  animal's  death;  though  in  case  of  injury  they 
must  both  share  in  the  payment  of  the  assessed  amount  of 
damages  {B.  K.  lob). 

Rabbi  Asher  ben  Yehiel  in  his  Responsa  decides  a  case 
of  an  accessory  in  theft  (which  is  civil  in  Jewish  law).  The 
facts  were  as  follows:  A.'s  purse  containing  money  was 
stolen  by  his  wife  and  thrown  out  of  the  window  into  a 
court-yard  where  her  brother  B.  picked  it  up  and  assisted 
her  in  removing  the  money  to  a  place  of  safety.  Rabbi 
Asher  ruled  that  the  act  of  theft  was  accomplished  by  the 
woman  when  she  took  (lifted  up)  the  purse,  and  the  sub- 
sequent assistence  rendered  by  her  brother  was  of  no  ac- 
count, hence  B.  was  not  liable  {Rosh  Responsiuniy  No.  64, 
rule  i). 

Mr.  Dembitz's  excuse  for  saying  that  R.  Judah's  ruling 
"is  not  good  law"  because  of  R.  Obadiah  da  Bartinoro's 
comment  that  *'the  Halacha  is  not  according  to  R.  Judah," 
is  not  plausible.  The  fact  that  the  Chief  Justice  of  the 
Supreme  Court  of  the  United  States  is  overruled  by  his 
colleagues  does  not  make  his  opinion  bad  law.  Indeed,  in 
many  instances,  the  opinion  of  the  minority  is  better  law 
than  that  of  the  majority.  And  so  it  is  here,  the  ruling  of 
the  Hakamim  majority  to  the  contrary  notwithstanding. 
Moreover,  Bartinoro  himself  explains  the  reason  of  R.  Ju- 
dah for  excepting  the  Hanuka  lamp,  because  it  involves  a 
duty,  niJfD.  Such  a  distinction  in  contributory  negligence 
is  of  great  interest  to  the  student  of  historical  and  compar- 
ative jurisprudence,  to  stimulate  which,  I  presume,  is  one 
of  the  objects  of  the  promoters  of  the  Encyclopedia.  Hence, 
the  various  opinions  bringing  out  the  points  of  law  as  in- 
terpreted by  the  Jewish  jurists,  is  of  more  importance  than 
the  final  dry  decisions.  Surely,  Mr.  Dembitz  does  not  for 
a  moment  dream  that  the  Encyclopedia  will  replace  the 
Shulkan  Aruk,  as  the  latest  code  for  the  Rabbaniml 

As  to  the  article  on  accusatory  procedure,  I  did  not 


22 

object  to  the  statement  that  the  practise  of  inquisition  was  * 
unknown  in  Jewish  law,  but  I  suggested  that  it  should  be 
cross-referenced  to  Examination  of  witnesses. 

As  to  the  editors  who  "wished  more  judicial  articles  in 
the  first  volume  and.  deliberately  chose  a  few  rather  im- 
proper headings,"  etc.,  and  the  excuse  for  omitting  to  Btate 
an  exception  on  the  ground  that  "the  editor  would  prob- 
ably have  stricken  out  as  unnecessary  detail,  over-running 
the  allotted  space,"  I  must  remark  that  if  the  editors  were 
anxious  to  secure  legal  matter  they  could  have  easily 
availed  themselves  of  many  topics  pointed  out  in  my  criti- 
cism that  properly  belong  to  Vol.  I.,  which  they  have 
omitted,  instead  of  crowding  in  subjects  under  misapplied 
headings.  While  I  admit  the  impossibility  and  impractic- 
ability of  filling  in  all  details  in  every  article,  as  space  is 
the  greatest  factor  to  be  considered  in  the  compilation  of 
an  Encyclopedia,  nevertheless  room  should  have  been 
given  to  the  exceptions  to  a  ruling  rather  than  to  additional 
matter  on  the  same  subject 

J.    D.    ElSENSTEIN. 


MR.  EISENSTEIN'S  CRITICISM 
Tc  The  American  Hebrew: 

The  rest  of  Mr  Eisenstein's  criticism  of  law  articles  in 
the  Jewish  Encyclopedia,  Volume  i,  has  appeared  in  your 
paper.  It  will  be  fully  answered  by  Dr.  S.  Mendelsohn,  of 
Wilmington,  who  does  me  in  some  respects  more  than  full 
justice.  Only  he  admits  that  in  my  article  on  alibi,  I  do 
not  distinguish  between  the  alibi  proved  on  the  accusing 
witnesses,  which  renders  them  "plotting  witnesses,"  pun- 
ishable as  such,  and  the  ordinary  alibi  showing  that  the 
prisoner  was  not  present  at  the  place  of  the  crime  commit- 
ted This  distinction  is  made  in  the  Mishna,  Makkot,  ch. 
i->  §  3*1  and  I  translate  what  is  there  said,  almost  at  the  be- 


«3 

ginning  of  my  article.     What  more  could  I  or  should  I 
do  ? 

Dr.  Mendelsohn,  in  his  reply,  thinks  that  I  was  a  little 
incorrect  in  comparing  the  accusatory  system  of  the  Jews 
with  that  of  Anglo-American  law,  because  in  the  former 
the  witnesses  of  a  crime  alone  were  under  the  duty  to  pro- 
secute, while  in  England  and  America  there  are  prosecuting 
officers.  But  in  England,  at  least  until  very  lately,  the 
Attorney-General,  the  Solicitor-General,  etc.,  only  instituted 
proceedings  for  political  offences,  or  offences  against  the 
revenue;  the  prosecutions  of  ordinary  crimes  such  as  mur- 
der or  theft  was  left  altogether  to  the  persons  who  hap- 
pened to  be  present,  or  to  the  injured  parties,  who  were 
^'recognized,"  that  is  put  under  bond  to  prosecute.  My 
object  in  the  comparison  was  only  this:  to  show  that  the 
jurisprudence  of  the  Jews,  a  liberty-loving  people,  agreed 
in  fundamentals  with  that  of  the  English  stock,  the  most 
liberty-loving  race  of  modern  times. 

L.  N.   Dembitz. 


A  FURTHER  REPLY  TO    MR.    EISENSTEIN 

I. 

To  The  American  Hebrew: 

Without  preface  or  introduction  I  beg  your  leave  to  show 
that  Mr.  J.  D.  Eisenstein's  'detailed  criticism"  on  "the 
Legal  Articles  in  the  Jewish  Encyclopedia,"  published 
in  your  columns  (Aug.  i6th  and  23d  respectively)  and 
which  he  concludes  with  a  formal  indictment  of  eleven 
counts,  is  the  result  of  misreadings  and  misunderstand- 
ings on  his  part. 

Mr.  Eisenstein  opens  his  series  of  criticisms  by  object- 
ing to  my  treating,  under  the  term  abduction,  "the  act 
of  stealing  a  human  being  by  forcible  abduction,  which 
is  KIDNAPPING."     He  cites  Webster    and    Blackstone    to 


prove  that  this  is  a  solecism,  and  concludes  the  para- 
graph with  the  assertion  that  '  the  term  [Abduction]  is 
usually  understood  by  laymen  (for  whom  the  Encyclo- 
pedia is  primarily  intended)  as  that  of  Seduction,  nriDO, 
in  Jewish  law."  As  for  the  first  objection,  even  in  view 
of  Webster's  and  Blackstone's  definitions,  as  quoted  by 
him,  //  is  unfounded,  since  the  elements  of  force  or  vio- 
lence as  well  as  stealing  or  taking  away  enter  into  both. 
More. recent  authorities  very  clearly  justify  the  use  of 
the  term  Abduction  in  the  sense  of  man^stealIng.  The 
Standard^t  Dictionary  says:  "Abduction  .  .  .  {Law),  A 
carrying  away  of  a  person  against  his  will,  or  illegally;" 
and  the  Century  Dictionary  gives  a  similar  definition. 
Indeed,  if  the  critic  will  consult  the  Encyclopedia  Brit- 
tanica  (xiv.  69),  he  may  learn  that  the  term  kidnap- 
ping is  'now  more  commonly  applied  to  the  offence  of 
taking  away  children  from  their  parents." 

And  as  for  his  statement  that  abduction  is  understood 
by  laymen  as  synonymous  with  Seduction  nriBD,  he  is 
simply  mistaken.  Seduction  is  effected  by  means  of  per- 
suasion (nna,  Piel  of  nna — to  persuade),  Abduction  by 
means  of  fraud  or  violence;  Seduction,  ^ins,  is  generally 
understood  as  an  offence  against  a  woman,  Abduction 
may  be  perpetrated  on  any  human  being.  It  seems  to 
me  that  Mr.  Eisenttein's  fear  of  a  layman's  misunderstand- 
ing the  term  is  entirely  groundless,  for  the  layman  that 
is  not  intelligent  enough  to  distinguish  between  Abduc- 
tion and  Seduction,  is  not  intelligent  enough  to  consult 
the  Jewish  Encyc'opedia. 

Mr.  Eisenstein  further  objects  to  the  fulness  of  the 
♦'description  of  the  malefactor,"  wherein  reality  no  attempt 
at  fulness  is  made,  for  that  alone  would  cover  the  space  of 
the  whole  article.  In  my  modest  work  on  "The  Criminal 
Jurisprudence  of  the  Ancient  Hebrews,"  a  chapter  is  de- 
voted to  "Persons  Indictable,"  ^hich  covers  with  the  notes 
8  pages  (78-86)!  And  when  he  avers  that,  unless  ''the  full 
description  of  the  malefactor"  be  omitted,  "repetitions  will 
occur  in  every  subject  of  crime,"  he  forgets  that  no  En- 
cyclopedia is  free  from  repetitions;  that  it  is  impossible  to 


25 

write  a  heterogeneous  series  of  articles,without  more  or  less 
frequently  repeating  one's  self,  and  that  no  article  would 
be  complete,  were  every  detail  mentioned  elsewhere 
omitted. 

Mr  Eisenstein  next  criticizes  my  statement  of  the  'aw. 
He  cites  it  thus:  "'Enslavement  must  be  accomplished 
["accompanied"  ?]  by  consciousness  on  the  part  of  the  vic- 
tim. Hence,  if  the  victim  is  in  a  state  of  unconsciousness 
— as  in  a  profound  sleep — at  the  inception  of  the  crime, 
and  remains  in  such  state  throughout  the  process  of  the 
crime,  and  until  its  accomplishment,  the  crime  is  incom- 
plete .  .  *  (7  lines  below)  *To  constitute  enslavement  the 
service  imposed  may  be  trivial.  Thus,  when  the  offender 
merely  leans  on  the  victim  or  uses  him  as  a  screen  against 
a  draft  and  that  even  while  the  subject  is  asleep,  it  will  be 
sufficient  evidence  of  enslavement  '  These  two  statements 
plainly  contradict  each  other  "  Plainly  Mr.  Eisenstein 
fails  to  distinguish  between  the  victim's  unconsciDUsness 
throughout  the  process  of  the  crime  and  his  being  asleep 
at  a  particular  stage  of  the  crime  of  which  enslavement  is 
only  a  part.  In  the  first  case  the  crime  is  incomplete,  even 
where  the  several  steps  in  the  crime  were  taken;  in  the 
second  case,  where  the  victim  was  asleep  only  during  part 
of  the  criminal  procedure,  if  the  other  conditions  were 
present,  the  crime  is  considered  complete  (compare  Maim., 
H.  Genebah  ix.  2-3)  It  seems  to  me  that  any  layman  read- 
ing the  extracts  from  the  article,  even  in  the  garbled  and 
disfigured  form  presented  by  the  critic,  can  and  does  read- 
ily see  the  difference. 

He  continues:  "The  writer  further  says:  'By  selling  him 
(the  victim)  the  Talmud  implies  the  sale  of  the  victim  as 
bondmen  are  sold  (Lev.  xxv  42).  [Mr.  Eisenstein  here 
omits  the  explanatory  clause:  "that  is,  the  whole  person  is 
conveyed,"  but  makes  up  for  it  in  advance  by  interpolating 
"the  victim".]  Therefore,  if  the  victim  be  a  pregnant 
woman,  and  be  sold  with  a  ["the"]  stipu'ation  that  only  her 
prospective  offspring  shall  become  the  property  of  her  pur- 
chaser .  .  ,  this  will  not  constitute  selling  in  the  meaning 
of   the   law.'      Apparently   the   writer   used    second-hand 


26 


.sources,  as  the  text  in  Talmud  (Sanh.  85!))  leaves  the  ques 
tion  open  ip'»n:  whether  or  not  the  act  of  leaning  against  a 
person  while  he  is  asleep,  or  using  a  body  as  a  screen 
against  a  draft,  constitutes  a  service  in  the  meaning  of  the 
law  nDDI  ^2  noynni  'and  he  deal  with  him  as  a  slave  or  (He- 
brew and)  sell  him'  (Deut  xxiv  7  Rev.  Ver.)  to  complete 
the  crime."  Mr.  Eisenstem  cites  fiom  my  article  the  case 
of  a  pregnant  woman  sold  with  the  sole  purpose  of  trans- 
ferring to  her  purchaser  her  prospective  offspring,  and  im- 
pugns my  conclusion  by  adducing  the  Talmudic  moot 
question:  "Whether  or  not  the  act  of  leaning  against  a 
sleeping  person,  or  using  the  body  as  a  screen"  constitutes 
a  service!  The  Talmudic  passage  to  which  both  the  article 
and  its  critic  refer,  includes  the  question  of  the  pregnant 
woman;  and  although  this  is  the  main,  if  not  the  only  part 
relevant  to  the  criticism,  the  critic  inadvertently  bmits  it! — 
But  what  may  he  mean  by  saying:  "Apparently  the  writer 
used  second-hand  sources"?  Surely  by  '^second-hand 
sources"  he  cannot  mean  Maimonides,  Hoshen  Mishpat, 
Semag,  etc.,  or  why  say  "apparently"?  I  cite  them  often 
and  openly,  and  he  himself  refers  to  them!  Probably  he 
means  old  books  or  second-hand  copies  of  the  ancient  Jew- 
ish writers;  if  so,  he  is  right.  Some  of  my  books  are 
second-handed  and  quiet  ancient  looking  and  considerably 
dog-eared.  But  this  proves  nothing  either  for  or  against 
the  correctness  of  my  article  or  of  the  criticism. 

"Maimonides  decides  in  the  negative:  that  leaning  on  a 
sleeping  person,  unless  he  is  aware,  at  least  part  of  the 
time,  of  the  service  he  so  renders,  is  not  considered  as  being 
enslaved."  In  the  second-hand  Yad  ha-Hazakah  before 
me  (edition  Furth,  1767),  Maimonides  decides  just  as  I 
state  in  the  article.  Maimonides  here  says:  ]V\^^^]^i2 
n  ^J2n^:  T,n  ]^^  2^:2^^  a'VN  U  IDDJ  in  vhv  •  •  •  .  '  if  he  re- 
clined on  him,  or  supported  himself  by  him.  ^ven  while  the 
stolen  one  was  asleepy  he  made  use  of  him'  (H.  Genebah  ix. 
2).  This  is  quite  different  from  what  the  critic  ascribes  to 
Maimonides;  has  he  a  modernized  version  of  this  passage 
in  Maimonides*  works?  Or  had  he  in  mind  the  next  sec- 
tion, where   Maimonides  says:    t^^^riK^Jl     y^""    Nini   1133    DN 


37 

liDQ  f  n  1^''  Nin  pnyi  "1-13^1  IC'^  Nl&j'j  U— *  If  he  stole  him 
while  he  was  asleep,  and  made  use  of  him  while 
he  was  asleep,  and  sold  him  while  he  still  slept, — in  such  a 
case  he  is  not  guilty.'  If  this  is  the  critic's  excuse,  then  he 
again  manifests  a  failure  to  distinguish  between  the  vic- 
tim's intermediate  sleep  and  his  continuous  sleep 

"Also  that  the  use  of  the  body  as  a  screen  against  a  draft 
is  no  service  ,  hence  in  the  case  of  a  pregnant  woman  the 
crime  is  not  accomplished."  Granting  the  premise,  because 
(or:  although)  Maimonides  makes  no  mention  of  that  case 
— the  critic's  implication  to  the  contrary  notwithstanding — 
I  cannot  see  how  the  conclusion  fol'ows  from  it.  It  is 
true,  the  Gemara  (Sanh.  85b)  includes  NpT  ""DNn  NCpINT  HETN 
— 'Placing  a  woman  against  a  draft,'  and  Rashi  (ad  1.)  de- 
clares it  to  be  no  service;  but  as  I  refer  not  to  the  woman 
placed  against  a  draft,  but  to  mmj;^  nE^J>?  id^ — 'Selling  the 
woman  with  the  view  to  the  transfer  of  her  prospective 
offspring,'  the  critic's  combination  and  conclusion  are  rather 
strange.  Hence  when  he  further  says:  "He  [I]  combines 
the  two  separate  questions,  and  decides  contrary  to  the 
Sly,"  the  reader  can  readily  see  that  it  is  the  critic  who  is 
making  curioas  combinations,  and  that  the  decisions  given 
in  the  article  are  in  full  accordance  with  the  law. 


II. 

"Abetment  (S.  M  )"  is  the  next  article  receiving  the 
critic's  attention.  He  remarks:  "The  treatment  here  is 
similar  to  that  of  accessories  (L.  N,  D),  Both  include 
the  seducer  (inciter)  who  is  neither  one  nor  the  other." 
That  the  treatment  is  similar  is  owing  to  the  similarities  in 
the  nature  of  the  offences  those  terms  usually  imply;  ard 
that  the  seducer  (niD?.:)  is  an  abettor  follows  from  the  char- 
acter of  his  crime.  In  criminal  law,  only  the  actor  in  the 
commission  of  a  crime  is  a  principal,  and  of  principals 
there  are  two  kinds:  a  principal  in  the  first  degree,  or  the 
person  actually  perpetrating  the  fact;  and  a  principal  of 
the  second  degree,  or  he  who  is  present  aiding  and  abetting 


t9 

the  commission  of  the  fact.  Now,  the  Mesith  is  certainly 
not  a  principal  in  the  first  degree,  since  he  commits  no  act: 
he  serves  no  idol,  or  he  would  cease  to  be  denominated  a 
Mesith  and  would  be  termed  an  Idolater;  he  is  not  a  princi- 
pal in  the  second  degree,  since  his  guilt  does  not  depend 
on  results:  a  mere  attempt  to  incite  is  sufficient,  and  the 
law  punishes  him  even  where  no  apostasy  results  from  his 
incitement.  He  is  punished  for  his  evil  intention:  for 
counselling  to  do  evil,  or  as  Scripture  expresses  it  (Deut. 
xiii.  iij:  -JM^JX  n'byD  "]nnnWpi  ^3—"  Because  he  hath 
sought  to  thrust  thte  away  from  the  Lord  thy  God,*' — 
hence  we  recognize  in  him  an  abettor  of  evil.  He  may  also 
become  an  accessory  where  his  counsel  succeeds  in  mislead- 
ing. And  since  the  imposition  of  punishment  on  the  Mesith 
is  unique  in  Jewish  law,  neither  the  Bible  nor  the  Talmud 
punishing  for  ideas  "E^yD  U  pNK^  w!?,  except  in  certain  cases 
(see  Josef.  Mak  iv  — ed.  Zuckermandel,  v.  ii;  Gemara 
Mak.  i6a),  his  case  is  properly  cited  under  both  abetment 
and  ACCESSORIES, 

Mr.  Eisenstein  admits  my  statement  that  'idolatry  among 
the  Jews  was  an  offense  against  the  state,  .  .  .  high  treason 
against  the  Divine  King,'  and  says:  "But  if  so.  the  inciter 
is  a  principal  not  an  accessory,  because  'in  high  treason 
there  are  no  accessories  but  all  are  principals  on  account  of 
the  heinousness  of  the  crime'  (Blackstone's  com.  Bk  iv, 
ch.  3,  par.  2,  also  Cent.  Diet.).  And  an  Abettor  who  is 
absent  when  the  felony  is  committed  is  merely  an  acces- 
sory.'' The  objections  raised  in  this  sentence  are  removed 
by  what  has  just  been  said.  Besides,  the  critic  should  re- 
member that  the  Rabbis  of  old  were  no  disciples  of  Black- 
stone  and  did  not  copy  Common  Law;  and  as  Rabbinic 
law  is  ancient  Jewish  law,  Blackstone's  Commentaries  can- 
not be  authority  for  articles  on  Jewish  law  drawn  from  Rab- 
binic sources. 

'•Moreover,  an  accessory  must  be  concerned  either  before 
or  after  the  perpetration  of  the  offensive  act,  while  in  the 
case  of  the  inciter  to  idolatry,  no  act  is  necessary,  as  the 
mere  incitement  constitutes  the  crime." — Hence  the  inciter 
is,  as  has  been  shown,  sometimes  an  abettor  and  sometimes 


29 

an  accessory:  it  depends  on  the  circumstances  following  his 
attempt. 

In  this  connection,  Mr.  Eisenstein  quotes  from  the  "Code 
of  Moses  Couci  (Semag)  Lavin  29"  (26?),  a  passage  which 
he  renders  thus  :  "  The  JT'DD  who  incites,  whether  in  the 
plural  (let  us  go)  or  singular  sense,  is  executed  by  stoning; 
even  though  no  idolatrous  act  was  committed,  either  by 
the  inciter  or  by  the  one  whom  he  incites  "-:-This,  I  submit, 
is  not  very  intelligible,  and  misrepresents  the  learned 
author.      The    original    reads    thus : 

i6v  Q*VN  bpo:  T'n  i^n'  ]^t^h2  r^  D'^*^  rE^^:i  V^  n'or^^  n-DonK^ 

n^DD  T'n  nnyi  "ji? 

and  means  this  :  *The  Mesith  who  incites,  whether  he 
expresses  himself  in  the  plural  or  in  the  singular,  must  be 
stoned,  even  though  no  idol  has  yet  been  worshipped  [in 
consequence  of  his  attempt]  either  by  the  inciter  or  by  the 
incited.  How  [must  he  express  himj-elf  to  become  liable]? 
If  he  says  to  his  friend  :  "  Let  us  go  and  worship  [idols]' 
or:  "  Go  and  worship,"  this  constitutes  him  a  Mesith:  -As 
both  articles,  abetment  and  accessories,  state  the  law 
in  language  almost  identical  with  that  of  the  "Semag,"  and 
both  articles  refer  to  Talmud  and  Rabbinic  Codes,  the 
critic's  object  in  citing  the  Semag  does  not  appear  on  the 
surface;  therefore  I  must  pass  it  by  without  further  notice. 
"The  writer  of  accessories  gives  the  stereotyped  legal 
definition  of  an  accessory  ^either  by  counseling,advising,etc" 
If  this  contention  is  correct,  how  does  it  [inciting  to  idolatry] 
compare  with  accessory  that  requires  an  act  either  before 
or  after  the  act?" — while  the  mere  attempt  to  incite  does 
not  agree  with  the  "legal  definition  of  accessory,"  the 
contention,  "It  is  not  necessary  that  any  one  should  have 
been  actually  misled"  is  none  the  less  correct.  The  critic 
himself  has  just  cited  a  passage  from  the  Semag  "proving  it 
so.  This  passage,  as  quoted  above,  is  almost  a  verbatim 
transcription  of  the  law  as  expounded  by  Maimonides  (H) 
'Akkum  V.  2  and  part  of  1 ;  compare  Kesef  Mishneh  ad  1.) 
and  is  based  on  the  dictum  of  the  Mishnah  (Sanh.  vii    10) 


and  of  the  Boraita  (cited  Sanh  67a), referred  to  by  the  writers 
of  Abetment  and  Accessories. 

"In  both  ABETMENT  and  accessories  mention  is  made 
of  n''7tJ',  Agent,  it  should  be  referred  to^  agency." — Mr 
Eisenstein  at  last  makes  a  good  point,  but  only  this  one 
point;  and  I  plead  guilty  of  having  omitted  to  cross  refer 
n''7K*  to  agency  where  it  naturally  receives  detailed  treat- 
ment. He  is,  however,  mistaken  in  ascribing  to  the  writers 
of  the  said  articles  another  omission.  He  says:  "In  regard 
to  the  judicial  maxim  that  one  cannot  be  an  agent  in  an 
illegal  act,  the  writer  forgets  to  point  out  the  exception  in 
aiding  a  thief  in  the  slaughter  or  sale  of  stolen  cattle  that 
makes  him  liable  to  a  fine  imposed  in  the  Bible  (B  K. 
79a)." — To  this  I  might  answer:  As  this  supposititious  case 
is  a  creation  of  the  critic's  imagination,  and  not  cited  in 
"B.  K.  79a"  or  in  any  one  of  the  Rabbinical  works  on 
which  the  writers  of  the  articles  rely,  they  cannot  justly  be 
criticized  for  the  failure  to  quote  it.  And  even  were  it  as 
the  critic  states:  were  this  case  cited  in  '*B.  K,  79a"  or  in 
any  standard  code,  there  would  still  be  no  reason  for 
criticizing  the  omission  thereof.  The  case  as  given  by  the 
critic  is  no  "exception"  in  the  proper  sense,  and  is  covered 
by  what  the  writer  of  abetment  says  under  the  sub-heading, 
"Ritual  Matters"(p.  55b).  As  there,  so  here,  the  liability 
would  depend  on  the  ability,  or  inabi  ity  of  the  thief  to 
accomplish  the  act  by  himself  (compare  Hoshen  Mishpat 
cccxl  vii  8);  and  i  fully  agree  with  the  "Reply  to  Mr. 
Eisenstein"(in  your  issue  of  23rd  inst.)  where  the  writer  says: 
"Had  I  given  it  with  any  fullness,  my  editor  would  pro- 
bably have  stricken  it  out  as  unnecessary  detail." — How- 
ever, the  Talmud  (B  K.  79a  or  rather:  78  et  seq )  does 
cite  a  case  of  a  thief  and  a  slaughterer  or  seller  of  stolen 
cattle,  but  it  reads  thus :  n3»^  "'ns?  ]n:)  m  n3t2i  ^mh  ]n:)  3JJ 
T^n-....  He  steals  and  delivers  to  another,  and  he  [that 
other]  slaughters;  he  steals  and  delivers  to  another,  and  he 
[that  other]  sells  ..  he  [the  thief]  is  liable  '  In  this  case, 
contrary  to  the  maxim  cited,  the  law  says:  *One  may  be  an 
agent  in  an  illegal  act '  Still  the  criticism  is  baseless,  for 
even  this  case  is  no  real  exception  to  the   general    maxim. 


3' 

It  is  the  better,  if  not  tlie  unanimous  opinions  ot  the  stand- 
ard jurists,  that  the  agent  in  this  case  is  merely  the  tool,  the 
innocent  messenger  of  the  thief;  that  he  was  ignorant  of 
the  fact  that  the  cattle  he  handled  were  stolen  cattle,  and 
that  he  was  ignorant  of  participating  in  a  felony:  therefore 
the  thief  alone  is  liable  Had  the  slaughterer  or  seller 
known  that  the  cattle  were  j-tolen  he  would  be  guilty,  and 
1  able  to  fines  (se€  Hoshen  Mihhpat  clxxxii, Proem;  Hagadah 
and  G  ossaries;  Tos.  B.  M.  lob  s.  v..  And  as  this  case  too 
is  fully  covered  by  what  is  said  under  abetment  (p.  55a), 
there  was  no  need  for  citing  it. 

Again,  the  critic  says;  "Also  where  the  agent  himself  is 
not  legally  re>ponsible  or  prohibited  to  do  the  act,  the 
responsibility  reverts  to  the  principal,  who  alone  becomes 
liable.  Inasmuch  as  in  such  a  case  he  cannot  plead  or 
point  out  to  the  agent  his  duty,  nai  n^oi?nn  ^^nm  mn  ^^21 
VroiiJ'  ^D""  to  rather  follow  the  dictation  of  the  Master  (God) 
than  that  of  his  suborinate  man  "—  Of  course,Mr.  Eisenstein 
means  to  say  that  the  writer  of  the  article  on  abetment 
has  omitted  this  case  also;  but  he  seems  to  have  overlooked 
the  citation  in  that  aiticle  (p.5£a,  line  24  et  seq.)  of  the  case 
of  the  bailee's  breach  of  trust  committed  through  his  s'ave. 
That  case  clearly  illustrates  the  law  governing  all  cases 
"where  the  agent  himself  is  rot  legally  responsible  "—  As 
for  the  maxim  2in  nni  'One  should  rather  follow  the 
Master,  etc.,'  thi*,  too,  is  fully  illustrated  under  abetment 
(p   54b,  line  17  from  bottom  et  seq  ). 

"In  citing  the  case  of  homicide  in  abetment  he  fails  to 
explain  the  difference  between  murder  and  manslaughter 
which  the  Talmud  distinguishes  broadly.  Otherwise  the 
citation  is  misunderstood  and  seems  senseless.,' — The 
article  on  abetment  is  certainly  not  the  place  to  explain 
such  differences.  They  belong,  under  homicide,  and  there 
they  will  be  detailed  Had  they  been  discussed  here  one 
might  justly  suggest  that  they  should  have  been  omitted 
and  reserved  for  their  proper  place.  And  as  to  the  critic's 
conclusion  regarding  the  citation's  being  misunderstood  and 
appearing  senseless,  the  writer  thought  and  still  thinks  that 
the  citation,  as  it  appears  in  the  article,  fully  illustrates  the 


snbject  treated,  and  leaves  no  room  whatever  for  misunder- 
standing. 

••The  civil  cases  of  abetment  properly  belong  to 
Damages  or  Negligence  "—So  do  other  cases,  used  for  the 
purpose  of  illustrating  other  topics,  belong,  and  must  of 
necessity,  belong  to  some  other  general  titles.  It  is  by  the 
cases  'properly  belonging  to  damages  and  negligence' 
that  the  rules  governing  Abetment  in  civil  cases  are,  and 
must  be  illustrated  and  made   clear. 

S.  Mendelsohn 

Wrightsville  Beach,  N.  C,  Aug.  30th,  1901., 


MR.   EISENSTEIN'S  COUNTER  REPLY. 

To  The  American  Hebrew: 

Rev.  Dr.  S.  Mendelsohn's  reply  to  my  criticism  that 
"  it  is  the  result  of  misreading  and  misundersiandir  g  on 
my  part  "  is  quite  a  "  clever  argument,"  but  when  his  logic 
is  analyzed  well  — the  reader  may  judge  for  himself 
after  I  conclude.  I  shall  not,  however,  stop  to  argue  again 
whether  "  men-stealing  "  should  be  treated  under  abduc- 
tion or  KIDNAPPING,  except  to  remark  that  I  did  not  say 
that  "Abduction  '  is  absolutely  wrong,  but  suggested  that 
since  '  Kidnapping  "  means  by  force  only,  and  that  Web- 
ster in  his  dictionary  especially  mentions  this  Jewish  law  on 
men-stealing  under  Kidnapping  and  not  under  Abduction, 
the  former  should  have  been  selected  as  the  proper  head- 
ing 

In  reference  to  the  contradiction  in  the  statements 
of  Re/.  Mendelsohn,  pointed  out  in  my  criticism,  he  re- 
plies that  I  "  plainly  fail  to  distinguish  between  the  victim's 
unconsciousness  throughout  the  process  of  the  crime  and 
his  being  asleep  at  a  particular  stage  of  the  crime."  This 
is  not  so,  and  Rev.  Mendelsohn  himself  quotes  my  words 
that:  •  Maimonides  decides  .  .  .  that  leaning  on  a  sleep- 
ing person,  unless  he  is  aware  at  least  part  of  the  time,  of 


33 

the  services  he  so  renders,  is  not  considered  as  being  en- 
slaved." Surely,  this  draws  the  distinction  clear  enough, 
and  in  conformity  with  Rev.  Mendelsohn's  first  statement 
in  his  article  that  **  enslavement  must  be  accompanied  by 
consciousness  on  the  part  of  the  victim,"  etc.  But  his  sec- 
ond statement,  seven  lines  further,  in  which  he  says  that, 
"  to  constitute  enslavement  the  service  imposed  may  be 
trivial.  Thus,  when  the  offender  merely  leans  on  the  vic- 
tim or  uses  him  as  a  screen  against  a  draft,  and  that  even 
whi  e  the  subject  is  asleep  it  will  be  sufficient  evidence  of 
enslavement,"  is  a  glaring  contradiction.  Perhaps  Rev, 
Mendelsohn  intended  to  say  •*  while  the  subject  is  partly 
asleep."  If  so,  he  omitted  a  very  important  word,  and 
anyhow  this  is  not  sufficient  evidence  of  enslavement.  On 
the  contrary,  the  only  evidence  of  enslavement  is  that  part 
of  the  time  when  he  is  aivake. 

Rev.  Mendelsohn  accuses  me  of  omitting  in  my  quota- 
tion his  words  "  that  is,  the  whole  person  is  conveyed,"  I 
confess  that  I  was  fir^t  inclined  to  believe  that  this  refers  to 
a  half-slave  and  half  freeman,  that  is,  if  sold  for  part  ser- 
vice, but  since  he  insists  that  it  refers  to  the  pregnant 
woman,  I  can  now  readily  understand  his  misconstruction 
of  the  whole  subject  in  the  Gemara  (Sanh.  85b),  which 
compels  me  to  give  it  here  in  full: 

"  R.  Jeremiah  asked:  *  what  is  the  law  in  case  of  one 
who  stole  a  person  and  sold  him  while  he  was  asleep.  Also, 
what  is  the  law  in  case  he  sold  a  woman  for  her  offspring; 
shall  we  rule  that  this  constitutes  enslavement?"  The 
Rabbis  of  the  academy  were  surprised  and  retorted:  *'Why, 
he  (R.  Jeremiah)  ought  to  be  able  to  arrive  at  the  decision 
from  the  fact  that  there  is  no  enslavement  at  all  in  these 
cases  "  [which  is  an  essential  condition  before  the  sale  to 
complete  the  crime]  The  question  was  then  amended; 
"  Provided,  he  inclined  upon  the  stolen  person  who  was 
asleep,  and  he  stood  up  the  woman  against  a  draft. — Is  this 
enslavement  or  not? — No  decisioa."  [^Rashi:  Standing 
up  the  pregnant  woman  against  the  draft,  he  profits  by  the 
additional  space  occupied  by  the  embryo  who  thus  renders 
service  as  a  screen].     This  amended  question  being  unde- 


34 

cided,  Maimonides,  according  to  the  established  Talmudic 
rule,  to  give  the  accused  criminal  the  benefit  of  any  unde- 
cided question  (Magid  Mishna  to  Rambam,  Geneba  ix  3. 
4  ),  renders  his  decision  in  the  negative.  Consequently,  it 
is  no  service  and  no  enslavement  to  recline  on  an  unawar- 
ing  sleeping  person,  or  to  use  a  body  as  a  screen. 

Thus,  the  principal  errors  included  in  Rev.  Mendel- 
sohn's article  are:  (i)  The  statement  that  the  reason  •♦  be. 
cause  the  whole  person  is  not  conveyed"  which  applies  to 
a  half-slave,  he  conveys  to  the  pregnant  woman,  which  is 
untenable,  as  the  woman  herself  being  free  plays  no  part  in 
the  transaction,  while  her  embryo,  if  sold,  is  considered  as 
a  whole  body.  (2)  The  only  question  remains  whether  or 
not  the  embryo,  by  its  services  as  a  screen  constitutes  the 
condition  of  enslavement.  The  same  negative  ruling  is 
also  to  be  applied  in  this  case.  Hence  the  services  of  a 
body  as  a  screen  is  not  enslavement,  in  contradiction  to 
the  second  statememt  of  Rev.  Mendelsohn  who  says: 
"  when  the  offender  .  .  .  uses  him  as  a  screen  ...  it  will 
be  sufficient  evidence  of  enslavement."  (3)  In  the  same 
statement,  he  claims  that,  **  when  the  offender  merely  leans 
on  the  victim,  .  .  .  even  while  the  subject  is  asleep  it  will 
be  sufficient  evidence  of  enslavement,"  which  is  contrary  to 
the  decision  of  Maimonides,  quoted  by  me  in  an  abridged 
form  and  is  also  contrary  to  that  of  Maimonides,  quoted^by 
Rev.  Mendelsohn  who  says:  **  if  he  stole  him  while  he 
was  asleep  ...  he  is  not  guilty."  In  the  previous  para- 
graph Rev.  Mendelsohn  misconstrues  Maimonides'  mean- 
ing by  quoting  *'  if  he  inclined  on  him,  or  supported  him- 
self by  him,  even  while  the  stolen  one  was  asleep,  he  made 
use  of  him."  The  text  in  the  copy  before  me  reads  as 
follows:  Even  if  the. service  he  makes  use  of  isof  less  value 
than  a  Peruta  (widow's  mite),  as  for  instance  he  inclined  on 
him  or  supported  himself  on  him."  Then  begins  a  new 
sentence:  "  Even  if  the  stolen  one  is  asleep,  etc.,"  which 
follows  and  is  explained  by  the  next  paragraph  (see  Magid 
Mishna). 

Rev.  Mendelsohn  makes  another  mistake  by  saying 
that  Maimonides  does  not  mention   the  case  of  the  preg- 


35 

nant  woman,  which  case  follows  the  above  paragraphs,  as 
the  fourth  in  that  section.  I  doubt  if  it  is  omitted  in  his 
Furth  edition.  He  further  says:  **  that  he  refers  not  to 
the  woman  placed  against  a  draft,  but  to  selling  the  woman 
with  a  view  to  the  transfer  of  her  prospective  offspring," 
and  cannot  understand  my  rather  strange  combination  and 
conclusion  (that  the  case  of  the  pregnant  woman  refers  to 
the  question  of  a  body  screen).  I  think,  that  the  Gemara 
referring  to  this,  as  fully  translated  before,  is  self-explana- 
tory, and  should  convince  any  impartial  reader  (who  is  re- 
quested to  look  up  the  sources  quoted)  to  judge  whether  I 
or  Rev.  Mendelsohn  make  "  curious  combinations."  The 
importance  of  the  Encyclopedia  warrants  a  careful  consid- 
eration and  should  not  be  treated  as  a  trivial  matter.  Rev. 
Mendelsohn  pretends  not  to  understand  what  I  mean  by 
my  presumption  that  he  used  second-hand  sources  to 
compile  his  article.  As  I  could  not  for  a  moment  believe 
that  a  Talmudic  scholar  would  so  misinterpret  the  plain 
words  of  the  Gemara,  I  judged  him  charitably,  assuming 
that  he  did  not  look  up  the  original  source  in  the  Talmud. 
But  since  Rev.  Mendelsohn  informs  us  that  "  his  books  are 
second  handed  and  quite  ancient  looking  and  considerable 
dog  eared,"  I  must  still  be  kind  and  presume  that  he 
neglected  to  dust  them  for  some  time. 

J.   D.    ElSENSTEIN. 


THE  LEGAL  ARTICLES  IN  THE  JEWISH 
ENCYCLOPEDIA 

II 

To  The  American  Hebrew: 

Rev.  Mendelsohn's  defence  of  his  article  Abetment,  if 
anything,  strengthens  my  criticism:  that  the  Mesith  being 
a  traitor  to  theocracy  is  a  principal  and  not  an  abettor  or 
an  accessory,  in  accordance  with  the  English  law,  as 
expounded  by  Blackstone.     Rev.   Mendelsohn's  excuse  is 


.     36 

that  **  the  rabbis  of  old  were  no  disciples  of  Blackstone 
and  did  not  copy  Common  Law;  and  as  rabbinic  law  is 
ancient  Jewish  law,  Blackstone's  Commentaries  cannot  be 
authority  for  articles  of  Jewish  law."  Yes,  but  common 
sense  is  the  basi?  of  all  laws.  Besides,  Abettor  and  Aces- 
cesorv  are  English  legal  terms  and  must  be  defined  in  ac- 
cordance with  the  conception  of  English  law.  If  these 
terms  do  not  fit  the  case  of  Mesith,  it  should  be  under  a 
different  heading:  Incitement  or  Idolatry. 

My  citation  from  the  "  Semag  "  about  the  Mesith,  he 
says  "is  not  intelligible  and  misrepresents  the  learned 
author,"  consequently  he  gives  his  own  version  which  does 
not  alter  the  substance  in  the  least,  only  he  uses  more 
words      These  are  the  two  for  comparison: 

My  Citation.  His  Version 

The  Mesith  who  incites,  '^The  Mesith  who  incites, 
whether  in  the  plural  (let  us  whether  he  expresses  him- 
go)  or  singular  sense,  is  exe-  self  in  the  plural  or  in  the 
cuted  by  stoning;  even  singular,  must  be  stoned, 
though  no  idolatrous  act  even  though  no  idol  has  yet 
was  committed,  either  by  been  worshiped  (in  conse- 
the  inciter  or  by  the  one  quence  of  his  attempt,)  cith- 
whom  he  incites."  er  by  the   inciter  or  by  the 

incited." 

Rev.  Mendelsohn  is  evidently  perplexed  and  cannot  dis- 
tinguish between  a  parallel  and  a  contradiction  He  makes 
the  same  mistake  regardmg  the  maxim  that  '"one  cannot  be 
an  agent  in  an  illegal  act"  to  which  I  observed  that:  '*  the 
writer  forgets  to  point  out  the  exception  in  aiding  a  thief 
ift  the  slaughter  or  sale  of  stolen  cattle,  that  makes  him 
liable  to  a  fine  imposed  in  the  Bible  (  B.  k.  79  a.)"  To 
this  Rev.  Mendelsol^n  objects  with  the  following  extraor- 
dinary remark:  "  As  this  supposititious  case  is  a  creation 
of  the  critic's  imagination,  and  not  cited  in  B.  k  79a  or  in 
any  of  the  rabbinical  works  on  which  the  writers  of  the 
articles  rely,  they  cannot  justly  be  criticized  for  the  failure 
to  quote  it."  Twelve  lines  further  he  forgets  this  remark 
and  says:  "However,  the  Talmud  (B.  k.  79a  or  rather  78  et 
seq)  does  cite  a  case  of  a  thief  and  a  slaughterer  or  seller 
of  stolen  cattle,  but  it  reads  thus:      He  steals  and  delivers 


37 

to  another,  and  he  [that  other]  sells  ...  he  [the  thief]  is 
liable."  Which  is  in  substance  exactly  what  I  said  in  con- 
cise form,  without  giving  the  literal  translation  to  spoil  the 
sense  Moreover,  the  matter  is  quoted  wholly  in  B.  k.  79a, 
save  one-half  of  the  last  line  on  78  b.  And  in  spite  of 
Rev.  Mendelsohn's  assertion  that  this  is  no  ''exception"  in 
the  proper  sense,  the  Gemara  (79a)  distinctly  gays:  Not- 
withstanding the  maxim  governs  all  laws  of  the  Torah,  an 
exception  is  made  in  this  case  that  a  Sheliah  for  the  slaugh- 
ter or  sale  completes  the  illegal  act  of  a  thief,  to  make  him 
liable  to  pay  a  fine  of  four  and  five  times  the  amount  of  his 
theft."  A  little  further,  Rev.  Mendelsohn  again  forgets 
and  states  that  **  the  case  (the  exception)  is  fully  covered 
by  what  he  said  under  Abetment  (p  55b.)"  The  logic  of 
such  contradictory  and  twisted  reasoning  is  no  less  aston- 
ishing than  his  invention  of  a  new  law,  for  instance:  "Had 
the  slaughterer  or  seller(?)  known  that  the  cattle  were  stolen 
he  would  be  guilty  and  liable  to  fines  (see  Hoshen  Mishpat 
cl.xxxii.  Proem;  Hagadah  (?^  and  Glossaries;  Tos.  B.  M. 
lobs.  V. )"  The  quoted  authorities  simply  confirm  my 
second  exception  that  I  pointed  out  "  when  the  agent  him- 
self is  not  legally  responsible  or  prohibited  to  do  the  act, 
the  responsibility  reverts  to  the  principal,"  and  which,  I 
claimed  was  also  omitted  in  the  article.  But  of  course, 
those  authorities  do  not  mention  the  newly  coined  law  of 
Rev.  Mendelsohn  that  the  slaughterer  or  seller,  (pur- 
chaser?) would  be  guilty.  Moreover,  even  if  such  a  law 
did  exist,  the  Hoshen  Mishpat  would  omit  it,  because  that 
author  records  only  operative  laws,  not  those  bearing  fines 
or  capital  punishment,  which  become  inoperative  and 
obsolete.  The  funniej't  view  of  it  is.  that  this  part  of  my 
criticism  touches  the  article  of  Mr  Dembitz,  who  being 
broadminded,  frankly  admitted  in  your  issue  ot  Aug.  23d 
that  "he  overlooked  the  passage  in  B.  k    79a  " 

To  form  a  correct  idea  of  Rev.  Mendelsohn's  interpreta- 
tion of  the  Talmud  h  la  Rodkinson,  I  may  be  permitted  to 
cite  from  his  article  Abimi  (p.62  )  He  says:  Abimi  is 
mentioned  as  reporting  (?)  Baraitot,  one  of  these  treating 
of   the   honor  due  to  parents,  says,  **  one  man   feeds  his 


38 

father  on  pheasants  and  yet  tires  him  of  this  world;  while 
another  yokes  his  father  to  the  treadmill  and  yet  prepares 
him  the  enjoyments  of  the  world  to  come  (Kid.  31  a)." 
Rev.  Mendelsohn  fails  to  explain  how  the  son  prepares 
his  father  for  the  enjoyment  of  the  future  world  by  yoking 
him  to  the  treadmill.  We  can  probably  comprehend  that, 
being  overfed,  the  father  makes  a  hurried  exit  from  this 
world;  but  where  does  the  enjoyment  of  the  next  world 
come  in  after  hard  labor  ?  However,  here  is  the  correct 
translation  of  that  Talmudical  passage:  **  Some  one  may 
be  [punished  and]  ousted  by  tribulation  from  this  world 
although  he  feeds  his  father  on  chickens;  and  some  one 
may  be  [rewarded]  in  the  spiritual  world  to  come  although 
he  makes  him  (his  father)  turn  the  mill."  As  Rashi  ex- 
plains: it  depends  entirely  on  the  demeanor  and  treatment 
of  the  son.  Some  rich  son  may  cook  wild  fowl  for  his 
father  and  be  disrespectful,  in  a  bad  humor  and  a  growl- 
ing disposition,  for  which  behavior  the  son  is  punished 
even  in  this  world;  while  another  son  who  is  poor,  may  be 
compelled  to  employ  his  father  to  grind  the  mill  to  help 
eke  out  a  livlihood,  and  jet  if  the  son  treats  him  gently 
and  kindly,  showing  good  will,  love  and  affection,  and  ex- 
pressing regret  because  he  is  temporarily  obliged  to  pursue 
such  a  course  owing  to  his  poverty.  For  such  a  son  a, 
reward  is  reserved  even  in  the  future  world.  I.am  done  with 
Rev  Mendelsohn.  Now,  I  would  like  "to  go  higher"  and 
ask  what  the  editor  of  that  department  of  the  Encyclopedia 
has  to  say  to  these  defects  and  shortcomings  ?  Neverthe- 
less, I  still  maintain  that  the  Encyclopedia,  as  a  whole,  is 
an  excellent  work  and  deserves  every  effort,  encourage 
mcnt  and  assistance  to  complete  it. 

J.  D.    ElSENSTEIN. 


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